I. How does one acquire property?

A. DISCOVERY – By first possession – “First in Time, First in Right”

1. How does one Discover?
a) During the age of discovery (1450-1600), real property could be acquired by
discovery [by Christian Europeans] by
(1) Finding unknown territory and
(2) Symbolically taking possession.
2. Problems with Discovery:
a) It gave rise to an to inchoate title, which had to be perfected within reasonable time
by (LABOR):
(1) Conquest
(2) Peaceful occupation, OR
(3) Purchase
b) The small problem of race:
(1) Native populations’ rights were largely ignored. They could transfer
possession but not ownership. (See Johnson v. M’Intosh)
c) Scenario
(1) “labor is rewarded”
(2) Marshall helped rationalize the social implications of his opinion by granting
Europeans the right to the land by discovery because, unlike the Indians, the
Euros build villages and farms and took possession of tracts of land (Johnson
v. M’Intosh)
3. Ejectment – To recover possession of real property
a) Elements
(1) Show actual possession or immediate right to possession
(2) That the π has been dispossessed of the realty
(3) The ∆ is in adverse possession (actually or constructively)
(4) Damages may be recovered
B. CAPTURE –
1. How does one capture?
a) Generally, no one owns ferae naturae (wild animals)
b) Actual possession: to capture a wild animal, you must actually possess it
c) Mortal wounding will constitute constructive possession
2. Possession:
a) Pierson v. Post
(1)  Property rights in ferae naturae are only gained through mortally
wounding or under ratione soli (reducing to your possession.)
(2) Facts:
(a) Hunter A is in pursuit of a fox on un-possessed wasteland. Hunter B
intercepts, kills and captures the fox.
(3) Holding:
(a) Starting a fox is not enough to claim possession, but mortally wounding
is.
(4) Reasons:
(a) To foster competition, society rewards the captor
(b) If you mortally wound, you did the hard work (Labor!)
(c) It is easier to administer capture as opposed to the chaser
3. Custom & Usage:

Walker, Property, 1
 a) Ghen v. rich
 Once you kill a whale, you own it, even though you cannot immediately
take possession.
(1) Facts
(a) A Whaler (“A”) shoots a whale in the Bay. The whale sinks and
resurfaces miles away. B finds whale corpse and sells it to C who
converts it into oil. A sues C in conversion.
(2) Holding
(a) The custom and usage in the whaling industry, that mortally wounding is
sufficient to claim ownership, is upheld, but you must share profit with
finder.
(3) Notes
(a) When to follow custom:
(i) The custom is industry-wide
(ii) It has been done for a long time
(iii) There is no other way to do it
(b) This would have reversed Pierson v. Post
(c) The dissent argued that pursuit should have given him constructive
possession
4. Escapees & domestic animals
a) Rule
(1) When a wild animal escapes it becomes un-owned. Belongs to first finder.
(2) Domesticated animals belong to true owner at all times
b) Animus Revertendi: If an animal knows where it lives, then it belongs to the true
owner even if it wanders onto another’s land (i.e. domestic cats)
5. Manners of Possession (getting first title) to Wild Animals:
a) Mortally wounding: The person to mortally wound (first) has superior rights over
subsequent interveners
b) Trapping or netting: You have control ∴ you have constructive possession. You
have superior possession, the same as in accession, and as for finders.
c) Mere Pursuit: The pursuer has inferior rights.
d) Ratione Soli: If you own the land, you are considered to have constructive
possession. American courts mostly reject this theory.
e) Natural Resources: The wild animal capture rules were initially applied to cases
involving nautral resources such as gas and oil. However, serious depletion of
natural resources has caused the capture rule to be replaced by extensive federal
and state resource legislation.
f)
g) Keeble v. Hickeringill
® Creating competition ok, but one can’t maliciously interfere w/ use of
another’s property, occupation, etc
(1) Facts
(a) π was operating a business on his pond catching wild ducks. ∆ began
shooting his gun off, scaring the ducks and thus infringing on the π ’s
business. π sues for trespass on the case.
(2) Holding
(a)
(3) Reasoning

Walker, Property, 2
 (a) If the ducks had all been sitting on the pond, π could have brought an
action of de bonis asportatis, but this would require proving he had
constructive possession of them by showing that none were in the air…
(b) π was using this pond as his business.
(c) ∆ was acting illegally even if he were a competitor (which he was not)
(d) Social policy of providing ducks for people to eat was important
(4) HYPO: Suppose instead of trapping ducks for his business, π would just go
out and feed them for pleasure. See animus revertendi!
6. Trespass to Chattels (de bonis asportatis)
a) Elements
(1) Intent
(2) Interference with possessory interest of another in personalty
(3) Causation
(4) Damages
7. Trespass to Land (quare clausum fregit)
a) Elements
(1) Intent
(2) Physical invasion of the land of another
(3) Causation
8. Trespass on the case
a) Antecedent to negligence
(1) Not committed by actual or implied force OR
(2) Committed by force when
(a) Injury was consequential,
(b) Subject matter was intangible, OR
(c) The interest in the property affected did not give a right of possession
9. Rule of Capture and Other Fugitive Resources
® Rule of increase – owner of mother animal always wins – promotes certainty
– always know who mom is (same in all legal cultures)
C. CREATION
1. Accession – INTENT MATTERS
a) Elements:
(1) The addition of value to property by expenditure of labor OR
(2) Addition of new materials.
b) General Rule
(1) When a person adds labor to an item owned by another, ownership of the
finished item is awarded to the owner of the original item, unless
(a) The accessioner’s efforts have:
(i) Completely transformed the nature of the item, OR
(ii) Substantially increased the value of the item
(b) AND The accessioner has not acted willfully
c) HYPO – A owns property with a cherry tree. B takes A’s wood and makes a
rocking chair.
(1) If B willfully took the wood, A keeps the chair
(2) If B acted innocently, he can keep it if he:
(a) Completely transformed it OR
(b) Substantially increased the value of the item
d) HYPO 2 – Say B now takes the tree and adds his own property to the item such as

Walker, Property, 3
 nails, adornments, et al.
(1) Now, B loses and does not get compensated for his labor/materials UNLESS
the attached item can be separated from the principal item without harm.
e) HYPO 3 – C then buys chair from B.
(1) A person who lacks title to goods cannot pass title, even to a bona fide
purchaser ∴ A can sue C (but never for more than he could have recovered
from B)
(2) NOTE: In some jurisdictions, the true owner can recover in conversion from
the purchaser based on the value of the item at the time of purchase, even if
the item had increased in value through accession, and even if both the
purchaser and accessioner acted innocently. However, in other jurisdictions,
award depends on whether the accessioner acted willfully:
(a) Innocently, and is not liable in the jurisdiction for the inc value of the
chattel, the innocent accessioner may be held liable for original value
only
(b) If he acted in bad faith, he may be held liable for increased value OR
simply original value
(3) NOTE: If C has to pay, C then has a C/A against B.
2. Intellectual Property
a) General Rule – To avoid monopoly and to promote competition, common law
allows copying and imitation… Social policy revails!
b) INS v. AP
(1) ∆ copied the news from the bulletin, bribed π ’s members to furnish it’s
news and influenced people to give it news it had not gathered on its own.
Then, the ∆ sold the news as it’s own.
(2) This was held to be an interference with business practice ala Keeble.
(3) Preventing news theft keeps news profitable for public good
c) Cheney Brothers v. Doris Silk Corp.
(1) ∆ copied fabric design and sold it cheaper.
(2) Allowing copying benefits consumer and prevents monopoly
II. How does one recover possession of real property:
A. Ejectment lies to recover possession of real property that is held adversely.
1. Elements:
a) The plaintiff has a right to possession of the realty in question at the time the action
is commenced. (Prior possession suffices against a trespasser.)
b) The plaintiff has been dispossessed of the realty.
c) The defendant is in adverse and illegal possession, actually or constructively.
d) Nominal or actual damages may be recovered
2. Exceptions:
a) Economic Waste: If ejectment would cause economic waste, a court may instead
cause ∆ to pay damages
b) Estoppel Theory: If π knew of trespass and did nothing, then he is barred from
recovery.
B. Replevin – return the chattel
1. Elements
a) π had possession OR immediate right to possession
b) ∆ wrongfully took π ’s property OR the ∆ refuses to return it after getting it
legally

Walker, Property, 4
 c) Despite π ’s request to return the property, the ∆ wrongfully detains it up to the
time of the suit
C. Conversion – monetary damages, used to be called trover
1. Intentional
a) If willful, damage determined at time of conversion
b) If innocent, damage set to cost of original item
2. Control of a chattel
3. Which seriously interferes with another’s right to control it
4. Causation
III. Subsequent Possession:
A. Finder –the first person to take possession of lost or unclaimed tangible personal property.
1. Possession:
a) Intent to control AND
b) an act to control.
2. Armory v. Delamarie
® title by finding is good against the whole world except the true owner AND prior
possessors (Armory) and sometimes the landowner (Staffordshire, McAvoy)
a) Facts
(1) π finds a jewel, takes it to ∆ for valuation. The ∆ will not return it and
even removes the gem, so the π sues for trover.
b) Holding
(1) π has superior rights
c) NOTES:
(1) If the sweep had successfully recovered in replevin, and the true owner
showed up, the true owner would then sue the sweep for replevin.
(2) If the sweep recovers in conversion (trover), the true owner cannot sue the
goldsmith again, but he can sue the sweep.
(3) BUT, prevailing view is that goldsmith should have to pay twice, then
recover from sweep on his own.
(4) Stone, since it is not produced, is valued at best quality
(5) Detinue sur bailment –detained property that had been lent for safekeeping.
(6) Detinue sur trover – detainment based on finding
3. Detinue
a) Elements
(1) The π had possession or the immediate right to possession AND
(2) The π had bailed that property to the ∆ (detinue sur bailment) or he casually
lost the property (detinue sur trover) AND
(3) Despite requests for ∆ to return the property AND ∆ ’s knowledge that the
property belongs to π , ∆ wrongfully converted the property to his own use
4. A Person finds property that is either Lost, Mislaid, or Abandoned:
a) Lost
(1) Elements
(a) Unintentionally AND
(b) Involuntarily
(c) Parts possession
(d) With real property
(2) General Rule – the lost property belongs to the finder until the true owner is
located

Walker, Property, 5
 (a) Owner v. Finder
(i) The owner has superior rights over the finder of lost property
(b) Finder v. Owner of locus in quo
(i) Public location:
(a) If the property is found in a public location, the finder prevails
over all but the true owner.
(ii) Private land:
(a) If finder is a trespasser, the owner of locus in quo will prevail.
(b) Courts are split if the finder is licensee or u:
(i) In America, we favor giving rights to the invitee or
licensee, because we want to reward those who find the
lost property.
(ii) In England, they would favor the owner of the locus in
quo, because it is more likely to return to the true owner.
(c) Embedded in soil v. on the surface
(i) If embedded in the soil, some courts award to owner of locus in quo
(ii) Otherwise, they award to the finder
(d) Finder v. employer of lost property
(i) Employer wins
(e) Owner of locus in quo v. employer of lost property
(i) Employer wins
(3) Hannah v. Peel
® owner of locus in quo does not possess lost property above the soil
when owner never entered property
(a) Facts:
(i) Hannah (soldier) found a brooch in Peel’s house (being used for
military house during WWII.) The brooch was not attached; it was
just laying on the property (distinguishable from Bridges and South
Stafforshire)
(b) Holding:
(i)
(4) South Stafforshire Water Co. v. Sharman
® where land owner possess and exercises control over land, it is
presumed that owner has possession over his employee or stranger
® where one is an agent or employee of another and finds something, he
finds it for his employer or agent, not himself
(a) Facts: ∆ was draining pool on π’s land and found rings
(b) Held: π has possession of the rings
b) Abandoned
(1) Elements
(a) Intentionally AND
(b) Voluntarily
(c) Relinquishes all right, title and interest in the property
(2) General Rule – The first person to take possession acquires title against the
world – including the true owner. (rewarding LABOR)
(a) Finder vs. owner of locus in quo
(i) Trespassers are not likely to be rewarded for wrongful behavior.
c) Mislaid

Walker, Property, 6
 (1) Elements
(a) Voluntarily
(b) Puts property in a certain place
(c) With the intent to reclaim it
(d) But fails to reclaim it OR
(e) Forgets where it was left
(2) Employer vs. owner of locus in quo
(a) Owner of locus in quo wins!
(3) McAvoy v. Medina
 Mislaid property goes to the owner of the locus in quo
(a) Facts: someone found wallet in a barbershop
(b) Owner keeps it because it was mislaid NOT lost! ∴ he has a better
chance of finding the T.O.!
(c) Think: floor v. table  lost v mislaid
d) Treasure Trove
(1) Elements
(a) Gold, silver, currency or the like
(b) Intentionally concealed
(c) By unknown person
(d) For safekeeping
(e) In a secret location
(2) To whom does it belong?
(a) England  The crown
(b) America  The finder OR owner of locus in quo (if the finder is
trespasser)
B. Adverse Possession
1. Purpose
a) Reward labor
b) To punish lazy owners
2. Elements
“Adam Eats Cock Hi-O!”
a) Actual
b) Exclusive
c) Continuous
d) Hostile
e) Open & Notorious
3. Actual
a) Can be actual if the land is
(1) Cultivated OR
(2) Substantially improved (See Lutz)
b) Color of title: claiming ownership pursuant to a defective written document
c) Constructive Adverse Possession
(1) Elements
(a) Color of Title AND
(b) Actual Possession
(c) of a significant portion of the premises
(2) “The possessor will constructively possess the whole property as described in
the defective deed”

Walker, Property, 7
 (3) HYPO: B enters under color of title onto A’s land under a fake deed. B can
get constructive possession of the whole property as described in the fake
deed.
(4) NOTE: Many states have statutes limiting adverse possession under color of
title.
(5) EXCEPTIONS:
(a) If the land is divided into distinctive lots, constructive possession only
applies to the lot the possessor actually occupies
(b) If a third person is in possession of part of the premises, possession does
not extend to that portion they possess.
(c) Many courts require some reasonable relationship btw the area actually
possessed and the additional area being constructively claimed.
d) Actual Possession vs. Constructive Possession (you may not actually posses, but
you have the right to it ratione soli)
(1) QUERY: Does professor own the attendance sheet?
(a) Actually, NO, it is being passed around
(b) Constructively, YES, she controls the whole room.
4. Exclusive
a) Holds the land
b) To the exclusion of the T.O.
c) NOTE on Tacking: If an adverse possessor is ousted by a third party, that party
may not tack the ousted possessor’s period onto his own.
5. Continuous
a) The possession must be continuous (as would a reasonable and average T.O. would)
for the statue of limitations.
b) Seasonal Use (e.g. summer use of a cabin without heat in northern woods)
c) Tacking
(1) Voluntary
(2) Privity of estate (voluntary transfer between possessors)
(3) Sewing together adverse possessors
d) Privity of Estate: Relationship btw two contracting parties in which each has a
legally recognized interest (deed, will, intestate succession, oral agreement.) The
transfer must be:
(1) Voluntary AND
(2) Continuous
e) Tolling: Suspension of the limitations time clock when the owner is disabled
(1) A disability must be in existence at the time of entry of the adverse possessor
(a) Minors
(b) Imprisoned
(c) Legally incompetent
(d) Military Service
(e) Absent from the state
(2) No tacking of disabilities
(3) Disability advantage ends if property transfers to someone who is not
disabled
6. Hostile
a) First, ask, “Is it a mistaken boundary???”
(1) If YES
(a) Objective – If you intend to be on the land, you are hostile
Walker, Property, 8
 (b) Subjective – You have to know you are on someone else’s land
(2) If NO
(a) Objective
(i) Majority American and English
(ii) State of mind is irrelevant
(b) Good Faith
(i) Minority American (Maine Doctrine)
(ii) Claimant must show that she believes the land to be hers
(c) Bad Faith
(i) Aggressive trespass
b) Other methods for resolving boundary dispute:
(1) Doctrine of Agreed Boundaries: An oral agreement to settle a boundary
dispute is enforceable if the parties accept the line for a long time
(2) Doctrine of Acquiescence: Long acquiescence is evidence of an agreement
between parties to fix the boundary line
(3) Estoppel: If A makes a representation (through words or actions) to B
concerning the location of a boundary, and B changes position in reliance of
that representation, A may be estopped from denying the validity of that
representation.
c) Entry under color of title: A possessor who unknowingly has a defective deed that
doesn’t actually deliver title will satisfy this element.
7. Open & Notorious
a) The general public must recognize the adverse possessors
b) Underground: this, by nature being difficult to show openly, it is necessary to
prove that the owner knew of the occupation or at least of the space (See Marengo
Cave)
c) Minor Boundary disputes: Some jurisdictions hold that small encroachments are
not open and notorious if it is of a small area and not clear and self-evident. The
statute of limitations does not begin until the owner has actual knowledge. (See
Manilo v. Gorski)
8. Adverse Possession in FLORIDA
a) Possession defined as:
(1) Usually cultivated or improved OR
(2) Protected by a substantial enclosure: Only the land enclosed will be awarded
in an adverse possession claim
(a) IF not enclosed, , THEN it must have been used for
(i) supply of fuel OR
(ii) fencing timber
(3) The part of the lot that is cultivated and the other part not cultivated
[according to the custom of the county]
b) With Color of Title
(1) Based on a properly filed document (or a decree or judgment)
(2) In possession for 7 years of the property as described in that document
(3) If the property is divided into lots, the possession is only of the particular lot
c) Without color of Title
(1) NOT based on a properly filed document (or a decree or judgment)
(2) In possession for 7 years of the property as described in that document
(3) Claimant must file and pay a tax return within 1 year of occupation AND
(4) Claimant must pay taxes on the property for the entire 7 year period
Walker, Property, 9
 d) Tolling in FL
(1) The action must be brought within 7 years of the event
(2) The running of the statute is tolled by:
(a) Incapacity: Adjudicated incapacity before the cause of action accrued of
the person entitled to sue
(b) Absence from the state of the person to be sued
(c) Any legal reason hindering service of process
(d) Nonage: When the minor does not have a parent or guardian
(e) …
9. Van Valkenberg v. Lutz
a) In NY, the fence, the “way” and the garden was not sufficient for substantial
enclosure or cultivation ∴ not possession.
b) “Under no stretch of the imagination could they establish possession by storing
junk.”
c) Court does not use objective standard, but it is unclear as to whether they use good
faith or bad faith either…
d) Dissent used Objective Standard by the fact that Lutz admitted the land was not his
in an earlier suit for easement.
10. Marengo Cave Co. v. Ross
a) A cave under B’s property had an entrance on A’s property, wherein it was used for
business. B sued to quiet title.
b) Holding
(1) This is NOT a case of Mistaken Boundary
(2) NOT Open & Notorious because it was underground
c) Note: Marengo had actual possession, Ross had constructive possession
11. Manillo v. Gorski
a) ∆ raised house and encroached onto π ’s land by several inches.
b) Holding: Elements are met, as small encroachments do not require same burden of
knowledge as large ones for the requirement of Objective Standard
12. Howard v. Kunto
a)
C. ADVERSE POSSESSION HYPOTHETICALS AND CLASS PROBLEMS
1.
D. Acquisition by Gift
1. Elements
a) Donative intent
b) Delivery of chattel to the donee
c) Acceptance by the donee
2. Inter Vivos gift
a) Elements
(1) Donative intent [of irrevocable transfer]
(a) Donee bears the burden of proof by “clean and convincing evidence”
(b) Cannot be subject to a condition
(c) Can be oral or written
(d) Interest can be present OR future, but actual giving must be present
(2) Delivery of chattel to the donee
(a) Generally, the donor must actually deliver the chattel and surrender
control over it.

Walker, Property, 10
 (b) It is unenforceable any time before actual delivery
(i) Symbolic delivery: Occurs when the thing delivered stands in the
place of the property.
(a) Only sufficient if the gift cannot be reasonably delivered
(b) Courts look to the size of the property OR the state of the
donor’s health
(ii) Constructive delivery: The chattel itself is not delivered but
something giving access or control over it is (like a key or a
revelation of a hiding place.)
(c) Delivery to third parties: A gift is valid if delivered to a third party
ONLY IF:
(i) Irrevocable upon transfer to the third party
(ii) The third party is the donee’s agent
b) Acceptance immediately by the donee
3. Gift Causa Mortis
a) Donative intent
b) Delivery of chattel to the donee
c) Acceptance by the donee
d) Must be made in contemplation of imminent death
e) Revocable if:
(1) Donor may revoke at any time during lifetime
(2) Death does not occur
4. Devise or Bequeath – transfer of property by a will after a person’s death
E. GIFT PROBLEMS
IV. System of Estates
A. Possessory Estates
1. Up from Feudalism
a) Tenure
b) Feudal Tenures and Services
c) Feudal Incidents
d) Avoidance of Feudal Incidents
e) The Decline of Feudalism
2. The Fee Simple
a) How the Fee Simple Developed
(1) Rise of Heritability
(2) Rise of Alienability
(3) Rise of the Fee Simple Estate
b) Creation of a Fee Simple
3. The Fee Tail
a) Abolition of the Fee Tail
4. The Life Estate
a) Valuation of Life Estate and Remainder
b) Seisen
5. Leasehold Estates
6. Defeasible Estates
a) Condemnation of Defeasible Fees and Reversionary Interests
b) Defeasible Life Estates
B. Future Interests
1.
Walker, Property, 11
V. Co-ownership
A. Tenancy in Common (Assume if it is not specified.)
1. Only requires unity of possession (each co-tenant has the right to possess the whole.)
2. They can petition the court to divide the property, and the court will do so if it is in the
interest of the tenants as a whole.
3. Example: O → A and B… A and B hold a fee simple absolute as tenants in common.
B. Joint Tenancy
1. Defined: Requires four unities:
a) Time: It must be created at the same time.
b) Title: It must be of the same instrument.
c) Interest: It must be equal shares of the same type.
d) Possession: It must be the same type of possession.
2. Ius accrescendi – the interest grows, such that when one dies, the other’s inchoate
interest ripens.
3. It may be split
4. Problems
a) Problem 1
(1) O conveys Blackacre to A and B as joint tenants and not as tenants in
common, with full right of survivorship.
(2) Subsequently, A dies, leaving C as her sole heir.
(3) B’s right of survivorship takes over, and B becomes the sole owner of
Blackacre.
b) Problem 2
(1) O conveys Blackacre to A and B as joint tenants and not as tenants in
common, with full right of survivorship.
(2) Subsequently, A conveys her interest in Blackacre to C.
(3) The conveyance to C breaks the unity of time and title (because C took by a
different instrument from B, and C took at a different time from B).
(4) Therefore, B and C hold Blackacre as tenants in common.
c) Problem 3
(1) O → A, B, and C as joint tenants and not as tenants in common, with full
right of survivorship.
(a) Subsequently, A conveys her interest in Blackacre to D.
(b) The conveyance to D breaks the unity of time and title as to D’s interest
(c) Therefore, D holds his one-third interest as a tenant in common with B
and C.
(d) However, the unities have not been destroyed in respect to B and C.
(e) Therefore, B and C continue to hold their respective one-third interests
as joint tenants in respect to each other.
d) Problem 4
(1) O → A and B as tenants in common for their joint lives, with a
remainder to the survivor.
(a) A and B have an estate that lasts for their joint lives (and that ends when
the first dies).
(b) A and B have cross contingent remainders, which are contingent on the
one surviving the other.
(c) O has a reversion.
e) Problem 5
(1) O → A and B as tenants in common; provided, however, that if B
Walker, Property, 12
 predeceases A, to A in fee simple absolute, and provided, however, that if A
predeceases B, to B in fee simple absolute.
(a) A and B have an estate that lasts for their joint lives.
(b) A has an executory interest.
5. Severance of Joint Tenancies
a) Riddle v. Harmon: ® A joint tenant terminates a joint tenancy by granting her one-
half undivided interest to herself (without a straw man).
b) Harms v. Sprague: ® Mortgaging a joint tenant interest does not sever it.
c) Spiller v. Mackereth: ® Majority view is that the occupying co-tenant is not liable
to pay rent unless:
(1) there is a demand to vacate or pay, AND
(2) the occupying co-tenant has denied his co-tenants the right to enter.
d) Title Theory – from the same time period when uses became popular
(1) Traditionally, in a title theory state, the execution of a mortgage by one joint
tenant causes the legal interest of that co-tenant to be transferred to the
mortgagee (lender).
(2) Thus, the mortgage severs the joint tenancy, because the unities have been
destroyed.
e) Lien Theory – Less likely to fragment the property
(1) In a lien theory state, the mortgagee receives a lien only on the property.
(2) Therefore, no severance occurs when the mortgage is made, because the
unities remain in tact.
(3) However, in a lien theory state, foreclosure will sever the joint tenancy.
(4) The courts are split as to whether a mortgage survives if the mortgagor dies
first.
(5) NOTE: At the time of this case, most cases started out as title theory, but they
ended up as lien theory. SO, following the lien theory, the mortgage ceases
to exist!

Walker, Property, 13
 6. Leases Severing?
a) Jurisdictions are split
(1) Some say, “Leases destroy because it destroys the unity of possession”
(2) Others hold, “Severance does not occur, and the non-leasing joint tenant may
declare the lease invalid and evict the tenant.”
(3) Yet others issue a temporary severance:
(a) The lease severs if the lessor dies during the term
(b) No severance if the lease ends before the lessor dies
(4) Alternative: No severance, but the surviving joint tenant is required to take
subject to the lease.
(a) HYPO: Wife claims the lease destroys unity of possession. She
becomes the surviving joint tenant.
(i) QUERY: Does she take the lease?
(a) She can, but she does not have to…
(ii) QUERY: What are her options?
(a) Ratify the lease and take some of the profits
(b) Seek involuntary partition
b) Seisin is not passed in a lease
C. Types of Joint Tenancy Bank Accounts
1. True Joint Tenancy Bank Account
a) During the joint lives of the owners, each holds a present right in the sums
deposited in the account
(1) In some jurisdictions, each joint tenant holds an equal fractional share
(2) BUT In most jurisdictions, the present right of each joint tenant is
presumptively proportional to the tenant’s net contribution
b) Upon death of either tenant, the survivor takes the remaining sum.
c) In the majority, a joint bank account is presumed to be a true joint tenancy.
(1) In some jurisdictions, the burden of proving otherwise is placed on the
moving party.
(2) In others, survivorship rights are presumed.
2. “Payable on Death” Bank Account
a) The party who creates the account has control until death, at which time the other
party takes control.
3. “Convenience” Bank Account
a) AKA Power of Attorney
b) The party who creates the account has present right ot all sums
c) The other party:
(1) May draw from account to pay bills
(2) Has no survivorship rights
D. Partition
1. Voluntary Partition: Accomplished by an exchange of mutual deeds among co-tenants
or by sale and division of the proceeds
2. Involuntary Partition: Judicial partition by court action – usually at the insistence of one
but not all of the co-tenants.
3. Owelty: When a partition cannot create equal shares, the party receiving the larger
portion pays cash to the other party.
4. Delfino v. Vealencis
a) ® The court must consider the interests of all parties not just the economic gain of
one party. Plus, statutes must be followed!
Walker, Property, 14
 E. Improvements, Taxes, & Mortgages
1. Accounting
a) Not allowed for personal use
(1) UNLESS there has been an ouster or exploitation resulting in depreciation.)
(2) For rents from 3rd parties (minus operating expenses such as taxes, mortgages,
et al.)
b) To get money $$$:
(1) Ask for a partition in sale
(2) Ouster elements:
(a) Ask to be let in
(b) Be denied entry
(c) Get fair market value
2. Repairs
a) CL approach does not allow contribution
b) Modern trend is that contribution may be compelled for necessary repairs, if they
were requested and refused
c) In a partition suit, costs may be credited appropriately
3. Improvements
a) There is no right to contribution unless the improvement lead to increased profits
b) These costs are only recoverable in a suit to partition
4. Taxes & Mortgages
a) A co-tenant who pays mortgage or taxes may only recover contribution in an
accounting or partition suit.
b) However, the co-tenant in sole possession will be reimbursed only to the extent that
his payment exceeds the market value of the property…
5. Swartzbaugh v. Sampson
a) ®
6. Sawada v. Endo
a) ®
VI. Marital Interests
A. Tenancy by the Entirety
1. Scope
a) NOTE: It has fallen by the wayside because it (1) restricts alienability and (2) it is
used to hide property from creditors.
(1) A creditor may attach to the property and force it to involuntarily sever.
b) Created by saying, “ H and W as tenants by the entirety and not as joint tenants
or tenants in common, with full right of survivorship.”
c) Married Woman’s Property Act (“MWPA”)
2. Issue: What approach to take if a creditor wants to levy against the property held as
tenancy in the entirety?
3. Rule Approaches
a) Group I  No states take this approach any longer
(1) A tenancy by the entirety exists at CL unaffected by the MWPA
(2) The husband may convey the entire estate subject only to the possibility that
the wife may become entitled to the whole estate on surviving him
(3) This goes back to the concept of dower and curtesy. The right to survivorship
of property seised of during the marriage is a separate and alienable right
under CL.

Walker, Property, 15
 b) Group II  Similar to MWPA because spouses are treated equally
(1) “Either one is subject to a lien”
(2) The interest of the debtor spouse may be sold or levied on for his or her
separate debts, subject to the other spouse’s contingent right of survivorship.
(creditors may unilaterally or involuntarily sever.)
c) Group III  Majority view for states where tenancy by the entirety is still
recognized.)
(1) An attempted conveyance by either spouse is entirely void.
(2) The estate may not be subject to the separate debts of one spouse only.
d) Group IV
(1) The contingent right of survivorship of either spouse is separately alienable
by him and attachable by his creditors during the marriage.
(2) BUT the use and profits cannot be alienated or attached during the marriage
4. Analysis:
a) Social Policy: The tenancy by the entirety’s protection from creditors is a social
policy wherein the family unit can be protected and plan for the children’s futures.
It is not bad to creditors because creditors are entirely capable of requiring both
spouses to sign on a contract, or to not loan unless the entirety protections are
waived.
5. Cases
a) US v. 1500 Lincoln
(1) The court decided to give her a life estate and if her husband predeceases her,
she gets fee simple absolute
B. Distribution of Marital Assets (What a court takes into account):
1. Scope:
a) CL Approach (Community Property)
(1) Each spouse keeps what they hold title to
(2) Tenancy by the entirety becomes tenancy in common
(3) Husband, if owning more, would have to provide alimony
b) Modern Approach
(1) Equitable distribution wherein the court has discretion based on statute
guidelines
(a) Made without regard to alimony
(b) Alimony is only supplied long enough for the dependent spouse to
obtain employment
(c) Must be equal unless unequal can be justified
(2) Assets include:
(a) Assets acquired by either spouse during the marriage other than by gift,
bequest, or descent
(b) Appreciation of nonmarital assets from the efforts or contribution of
either party during the marriage
(c) Gifts
(d) All benefits during the marriage (retirement, pension et al.)
(e) All property held as tenants by the entirety (presumed where record title
has both names), whether acquired prior to or during the marriage
2. Nonmarital Assets:
(1) Assets acquired prior to marriage
(2) Assets acquired separately by non-interspousal gift, bequest or devise or

Walker, Property, 16
 descent
(3) Income derived from nonmarital assets unless it is treated or relied on by the
parties as marital assets.
(4) Assets excluded by contractual agreement
3. Distribution Factors (general and broad, court’s discretion)
a) Equitable
b) The contribution of each spouse to the marriage ($, care of children, homemaker)
c) The material comfort of each party
d) Duration of marriage
e) Interruption of personal careers
f) Desirability of retaining any asset free of encumbrance or claim by another person
g) Contribution during the marriage
h) Home
(1) Best interest of children
(2) Equities of exclusive possession
(3) Any disabilities that would make one staying in the home better
(4) Any other factors to assist in equity or to do justice
i) Adultery may be considered if it resulted in depleted family funds
j) Education Views:
(1) It is property and you can get reimbursed for sacrifices and future earnings
(2) It is not property, but you can get reimbursed for sacrifice
(3) It is not property and you get nothing
4. Professional Goodwill
a)
5. Community Property
a)
6. Cases
a) In re Graham ® Education is snot property, as it cannot be bought, sold, or
transferred. (If the wife is inequitable in a divorce, there is equitable distribution
and alimony.)
b) Elkus v. Elkus
(1) Facts: P has opera career that she started as nothing with husband, D. D
acted and supported this very successful career throughout.
(2) ® The enhanced value of P’s celebrity status marital property IS subject to
equitable distribution?
(3) Analysis: Marriage is an economic partnership where if both contribute
actively to the success of the other, the enterprise should be considered
marital property.
VII. Landlord / Tenant
A. The Leasehold Estates
1. Creation (subject to the Statute of Frauds)
a) Express: Orally or in writing.
b) Implied: Estate theory vs. Contract theory vs. Statute
(1) Created by:
(a) conduct of the parties when the written lease is invalid, resulting in a
periodic tenancy
(b) when a holdover tenant pays rent and the lessor accepts the $.
2. Types of Tenancy
a) Term of Years
Walker, Property, 17
 (1) A single, fixed term of any length (>1 year must be in writing)
(2) It must be set out clearly in a lease or by reference to a formula which will
produce a fixed calendar date for the beginning and ending date of the
leasehold.
b) Periodic Tenancy
(1) Continues from period-to-period without a fixed termination date
(a) Termination requirements are given by statute
c) Tenancy at will
(1) Leasehold for no fixed time or period
(2) Terminates if:
(a) Either party dies
(b) The tenant commits waste
(c) The tenant attempts to assign his interest
(d) The landlord transfers the premises to a 3rd party for a term of years
d) Tenancy at Sufferance / Holdover Tenant
(1) When a tenant holds over after the end of a lease term
(2) Not a true tenancy
(3) Landlord has 2 options:
(a) Evict, OR
(b) Bind the tenant to a new term
(4) However, in most states, the lessor may recover possession and receive
double rent for the holdover period
(5) If the market drops, you may want to hold onto the tenant at the same high
rate, but if there is a housing shortage, you want to kick them out and get
higher rent.
(6) HYPO: Suppose A gets from B a lease for 5 years. If A stays after 5 years,
he is a trespasser, and B can choose:
(a) Kick out A and get double rent for the holdover period
(b) Allow A to stay as a periodic tenant month-to-month
(c) Execute a new lease
e) Problems:
(1) EXAMPLE 1: L transfers “to T for one year beginning on 10/1” and T
moves out on the following 9/30 without notice.
(a) What are L’s rights?
(i) L’s transfer creates a term of years
(ii) No notice is required to terminate a term of years
(iii) Therefore T may move out on 9/30 without notice to L
(b) What if the lease had been “to T from year-to-year, beginning 10/1?”
(i) L’s transfer creates a periodic tenancy
(ii) CL requires 6 months for a periodic tenancy
(iii) T cannot move out until he gives a 6 months’ notice
(iv) L may force T to pay rent
(c) What if the lease had been for no fixed term “at an annual rental of $24k
payable $2k per month on the first of each month”?
(i) Length of notice is determined by the length of the period
(ii) Some jurisdictions: Rent reservation clause ($24k per year)
determines the period
(iii) Others do so by the rent payment clause: $2000 per month.
(2) EXAMPLE 2: L leases “to T from year-to-year, beginning on 10/1”
Walker, Property, 18
 (a) L creates a periodic tenancy from 10/1 to 9/30.
(b) CL periodic tenancy termination requires 6 months’ notice.
(c) T may give 6 month notice and terminate accordingly
(3) EXAMPLE 3: L transfers to T for “no fixed term at an annual rent of $24k
payable $2k per month.”
(a) L’s transfer creates a periodic tenancy either year-to-year due to the rent
reservation clause (1 year) , month-to-month due to the rent payment
clause (per month)
(4) EXAMPLE 4: T, a month-to-month tenant, notified L on 11/16/2001 that she
would vacate as of 11/30/2001. T subsequently vacated on that date and paid
no further rent to L. L, after reasonable efforts, finally relet the premises
beginning 4/1/2002. The jurisdiction in question has no statute prescribing
the methods of terminating a month-to-month tenancy. L sues T for unpaid
rent for the months 12/2001 through 3/2002. What is the result?
(a) My guess: L transferred a month-to-month periodic tenancy to T.
Monthly tenancy would require a one month notice (unless otherwise
prescribed by statute). One month notice would be measured in whole
months, so the notice will be effective on 12/31/2001. L can collect rent
up until that point.
3. Cases
a) Garner v. Gerrish
(a)  P leased a house to D for $100 per month. The lease was to continue
until D chose to terminate. P died. P’s estate tries to evict D.
(b) ® CL  The will of the lessee is also the will of the lessor. (Coke)
(i) ∴ this would result in a tenancy at will
(c) ® Restatement “if the lease is terminable at the will of the lessor only,
the lessee gets a fee simple determinable which is terminable at his will
or at his death.”
(i) ☞ Tenant has a fee simple determinable which is terminable at his
will or at his death.
(d) 3 Models Arise:
(i) Coke: Both must have the right to terminate.
(ii) Restatement: Look to the intent of the parties (and will enforce the
unilateral right to terminate on either side) BUT if the K is
unconscionable because one party has the right to terminate
unilaterally, then the court MAY imply the right onto the other
party.
(iii) Middle Ground Jurisdiction: Let the T keep the unilateral right
but not the L because they are usually the party with the advantage.
B. The Lease
1. Term for years: has a start date and an end date. When it ends, it ends.
a) Crechale & Polles, Inc. v. Smith
(a)  Π leased to ∆ for 5 years. ∆ stayed beyond his lease term. Π
accepted payment for the first month of holdover. Then, Π refused
∆ ’s second month rent payment. 3.5 months later, P notifies D that D is
a holdover tenant and claims that the lease has been renewed. D moves
out and does not pay rent. P sues.
(b) ☞ Once a L treats a T as a trespasser, he cannot change his mind

Walker, Property, 19
 (c) ® Once a tenant continues as a holdover, you may:
(i) treat him as a trespasser and evict
(ii) hold him over as a tenant for another term
2. Rent Reservation v. Rent Payment
a) Rent Reservation Clause  How much you pay per year
b) Rent Payment Clause  When payment is due
3. Tenant at Sufference / Holdover Tenant
C. Fair Housing Act  Practice old exams!!!
D. Delivery of Possession
1. NOTE: A leasehold interest gives the tenant the right to Exclusive Possession
2. Majority (English, Florida) requires delivery of actual possession
a) The lessee must receive actual and legal possession from the lessor
3. Minority (US) requires the legal right to possession only.
a) The lessee must receive legal possession (as in just a signed lease) from the lessor
and that is all!
4. Hannan v. Dusch
a)  D leased to P for term of 15 years. There was a holdover tenant in place. D
refused to remove the holdover tenant.
b) ® The landlord should not be held liable for the wrongdoings of a 3rd party.
c) ☞ The landlord does not have an implied duty to deliver physical possession to the
tenant at the beginning of the lease term.
E. Subleases and Assignments
1. Assignment
a) Definition: When a tenant transfers all her right, title, and interest in the leased
premises to a third person.
b) Scope
(1) The assignee comes into privity of estate with lessor
(2) ∴ if rent is not paid, the lessor may sue the assignee, so long as the assignee
remains on the premises. (?)
(3) However, the lessor may not sue the assignee after the assignee has
transferred the premises to another third person, unless the assignee had
assumed the duty to pay rent.
2. Sublease
a) Definition: When the lessee transfers to a 3rd person less than all her right, title, and
interest in the leased premises.
b) Scope
(1) A sublessee does not come into privity of estate with the lessor
(2) ∴ Absent an express assumption of the duty to pay rent, the lessor may not
sue the sublessee directly for rent.
3. Privity of Estate
a) Definition: Both the assigner and the assignee (sublessor or sublessee) have an
interest in the property
b) Scope
(1) Old rule was that if a person assigned the entire interest in a lease to another,
then there was no privity of estate.
(2) The modern rule is that if the interests touch at leas at the moment of transfer
then there is privity of estate
4. Privity of Contract

Walker, Property, 20
 a) Definition: An assignment does not, by itself, destroy the binding effect of
contractual promises as personal obligations
b) Assumption: Assumption of performance of the lease obligations can occur
without release, a condition that places both the original tenant and the assignee in
privity of contract.
5. Ernst v. Conditt
a)  P leases to Rogers for 53 weeks. D wants to purchase the business, so P, Rogers,
and D negotiate a two-year modification of the original lease, where P consents to
Roger’s subletting the premises to D. D suddenly stops paying rent, but he
remained in possession through the term. P sues D for back rent.
b) Two Scenarios:
(1) It’s a sublease ∴ P has no privity of estate & no privity of contract!
(2) It’s an assignment ∴ P has no privity of contract, but DOES have privity of
estate!
6. Kendall v. Ernest Pestana
a)  Summary: D leased hangar space subject to a pre-existing lease with Bixler. B
arranges to sell business to P, but B’s lease provided for consent of the lessor, and
D refused consent.
b)  Generally:
(1) City of San Jose leases land to Perlitches
(a) Privity of K
(b) Privity of estate (both have a continuing interest in the property)
(c) San Jose has a reversion
(d) Perlitches have a lease
(2) Perlitches sublease to Bixler
(a) Privity of K
(b) Privity of Estate (no, the city can still sue them)
(c) Perlitches have a reversion
(d) Bixler has a lease
(e) San Jose does not have privity of K or Estate with Bixler
(3) Perlitches assign to Pestana (what they have is a reversion)
(a) Perlitches assign their reversion and step off the land (∴ no continuing
interest)
(b) San Jose cannot sue Bixler, but can sue Pestana based on privity of
estate (but not K)
(c) San Jose can sue the Perlitches on privity of K (but not Estate)
(4) Bixler attempts to assign to Kendall, but needed permission from Pestana,
which Pestana refuses
c) ® CL Rule of free alienability of a leasehold interest is valid, but it can be restricted
by contract…
d) ® Increasing minority view is that a lessor can only withold consent when there is a
commercially reasonable objection.
e) ® Rest 2nd Property states conditions unreasonably restraining alienation are void.
f) ☞ A commercial lessor may not unreasonably and arbitrarily withhold consent to an
assignment by the lessee.
F. The Tenant Who Defaults
1. Rule in Dumpor’s Case: Terminates the ‘prohibition against assignment when the
landlord consents’ [unless the L specifically reserves the right to prohibit future

Walker, Property, 21
 assignments] NOTE: Not applicable to subleases!
2. Discussion of Summary Eviction in FL
a) If lessee defaults or fails to perform on the terms of the lease, the lessor may
remove him in an action for summary eviction in county court.
b) Lessee defenses
(1) The lessor failed to maintain premises
(2) Retaliatory eviction
3. Abandonment: Voluntarily part possession with no intent to return.
a) In FL, it is when a tenant voluntarily leaves and does not pay rent for 1 month.
b) Options for the lessor, who has a duty to mitigate the rent:
(1) Retake the premises
(2) Ignore the abandonment
(3) Reenter and relet the premises for the lessee (find another tenant)
(a) If rent is same, no remedy
(b) If rent is half, then can sue for difference
(c) If rent is more, must determine if renting on lessee’s behalf or lessor’s
behalf.
(i) Lessor must typically give any extra to lessee
(d) NOTE: Some jurisdictions require the lessor to mitigate his or her
damages by reletting after abandonment
c) Sommer v. Kridel
(1) ® Landlord has a duty to mitigate damages by making a reasonable effort to
rent.
d) Duty to mitigate:
(1) There is no inherent duty for the L to mitigate
(2) Once you determine it is abandoned, the lessor elects what to do
(3) IF the lessor does nothing, then you presume the lessor has accepted the
abandonment
(a) Presume this because the lessor gets the property back
(b) And the tenant is no longer liable
(c) Good for the economy, and protects the T
(4) IF the T abandons and the lessor does not retake, then the leasehold estate
continues.
(5) Some cases suggest that there is a duty to mitigate even if you ignore the
abandonment and continue to hold the T liable for the rent. MODERN
TREND says that there is a duty to mitigate at all levels.
e) Burden of proof (burden of production!) lies on the party trying to avoid paying
the damages. Usually the T, but in Sommer, the court applies the burden to L.
f) Security deposit
(1) Look at lease
(2) Look at statute
(3) See and Shoe what deposit is given for
(4) If it is advanced rent then it cannot be used for damages
4. Berg v. Wiley
a)  The T had not abandoned the premises; she closed them for renovations but did
not inform the L. When he tried to change the locks, she said she wasn’t leaving.
Evidence said she intended to return to the property.
G. Duties

Walker, Property, 22
1. Lessor’s Duties
a) Delivery of possession
b) Statutory
c) Covenant of Quiet Enjoyment and Constructive Eviction
(1) Quiet Enjoyment
(a) Definition. The L promises the T that L will not disturb T in his
possession of the premises.
(b) Actually kicking out a T would be the most obvious way to do this.
(c) Actual Eviction: Lessee may treat the lease as terminated and withhold
rent if the lessor breaches the covenant of quiet enjoyment
(i) Partial Actual Eviction: If a lessee is actually evicted from part of
the premises, under the majority rule, the lessee is relieved of all
liability for rent. Restatement rejects this and calls for a rent
abatement.
(d) Constructive Eviction
(i) Definition. A lessee may treat the lease as terminated and withhold
rent if the lessor breaches the covenant of quiet enjoyment by
constructively evicting the lessee.
(ii) Requirements.
(a) The lessor’s acts must substantially and permanently interfere
with the lessee’s use and enjoyment of the
premises.
(b) The lessee must move out of the premises.
(iii) Acts which lead to constructive eviction:
(a) Withholding something essential
(b) Withholding something required by statute
(c) Exceptions to the caveat lessee rule:
(i) Habitable for short term rentals
(ii) Latent defects
(iii) Common areas maintained
(iv) Make promised repairs
(v) No fraudulent misrepresentations
(vi) Abate bad behavior of neighboring owned premises
(iv) Basis for a Cause of Action. The T must show an interference with
beneficial use and enjoyment serious enough to amount to an
eviction.
(v) Effect of a Breach on the Lease. T is excused from further
performance. T must vacate within a reasonable time.
(vi) Remedies Available. Tenant may treat the lease as terminated.
Rent is abated.
(a)
(vii) Partial constructive eviction
(a) Definition. If a lessee is constructively evicted from part of
the premises, under the majority rule, the
lessee may receive a rent abatement but
not a reprieve of all of the rent.
(e) Substantial Interference
(f) Notice to landlord

Walker, Property, 23
 (g) Tenant must vacate
(h) Fault
(2) Damages
(a) Sometimes, the lessee may seek money from the L if the state permits it.
(3) Measuring substantial interference
d) Illegal lease agreements
(1) A L is not liable to the T, or others on the premises with consent of T, for
injuries caused by a condition of the premises, except in the following
situations:
(a) Undisclosed dangerous condition
(b) Dangerous condition to persons outside the premises
(c) If the premises are leased to the public
(d) Parts of the land are still within the T’s control
(e) L has contracted to repair
(f) L has been negligent in making repairs
e) Implied Warranty of Habitability
(1) Nature. Guarantees that the lessor will deliver and maintain the premises that
are safe, clean and fit for human habitation.
(2) Basis for a cause of action. (1) provide notice to L. (2) allow reasonable
time to repair. (3) The T must show a defect in essential residential
facilities. May be patent or latent
(3) Effect of Breach on the Lease. T is excused from further performance under
the lease. May, but not necessary for T to vacate.
(4) Remedies. T may treat lease as cancelled. T may seek money damages,
reformation, or other traditional K remedies.
(5) Covers.
(a) Residential leases
(b) NOT Commercial OR Agricultural
(6) Warranty Standard
(a) Housing code violations, in some jurisdictions, automatically terminate
the implied warranty of habitability; however, substantial compliance is
sometimes acceptable
(b) CL is sometimes applicable in the absence of statute. Generally a
reasonable person standard.
2. Lessee’s Remedies for Breach of Lessor’s Duties
a) CL
(1) The covenants of L and T were deemed independent ∴ the duty of the T
remained even if the L breached.
b) Statutory
(1) In some states, if the L breaches, the T may:
(a) Withhold rent
(b) Repair and deduct
c) Breach of covenant of quiet enjoyment (express or implied)
(1) Recall: To assert a lessor’s breach, resulting in a constructive eviction of the
T, the T must move out of the premises
(2) Reste Realty v. Cooper
(a) ® T has a right to vacate if L substantially interferes with his quiet
enjoyment.

Walker, Property, 24
 d) Breach of warranty of habitability
(1) T may sue for damages, and need not vacate the premises
e) NOTE: Traditionally, covenants were viewed separate from the lease, and a breach
of one would not terminate the lease.
f) Hilder v. St. Peter
(1)  P rents from D for $140 per month + $50 damage deposit. D was major
slumlord. P stays and sues for damages.
(2) ® All residential dwelling units include an implied warranty of habitability.
(3) ☞ T must not abandon the premises when a L breaches the implied warranty
of habitability in order to obtain reimbursement of rent paid.
(4)
3. Lessee’s Duties
a) Rent
(1) Destruction of the premises.
(a) CL Estate Theory. The T’s duty to pay rent is nto relieved if the
premises are destroyed.
(b) Exceptions. In some jurisdictions in the US, the T may be relieved upon
destruction of the premises if:
(i) The T leased a portion of a building only, OR
(ii) The T leased a building w/o accompanying land
b) Repair
(1) CL Estate Theory.
(a) The L has no duty to repair the premises during the lease term. AND
(b) The T has a duty not to commit waste, which includes a duty to repair
(permissive waste.)
(c) T’d duties are similar to those of a life tenant
(2) Avoid Waste
(a) Permissive waste should be avoided
(i) The T has a duty to make minor repairs
(ii) T does not have a duty to make major repairs or to rebuild premises
if destroyed.
(b) The duty to not commit permissive waste is not limited to the extent of
income derived or reasonable rental value when the lessee possesses
personally
(c) T may not commit ameliorative waste (which a life tenant may do!)
(3) Express Covenant to Repair
(a) T may covenant to repair (typically excepts ordinary wear and tear and
acts of God)
(b) If the covenant is without exception
(i) The T must make all repairs, regardless of the cause
(ii) EVEN rebuilding the premises
(iii) Minority view  if the destruction was not his fault, there is no
duty to repair
c) Statutory
(1) Found in a statute! Duh…
4. Lessor’s Remedies for Breach of Lessee’s Duties

Walker, Property, 25